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I noticed that the PCN has the location as 'KFC Portsmouth, North Harbour'. I have searched further through the forum and believe this is insufficiently accurate

POPLA Appeal – PCN Reference [insert reference number]
Appellant: Registered Keeper
Date: [insert date]

I am appealing this Parking Charge Notice (PCN) as the Keeper on the following grounds:

1. The Notice to Keeper (NtK) failed to comply with Paragraph 9(2)(e)(i) of PoFA 2012.
2. The signage was insufficient and unclear, and there is no evidence of the vehicle's location in relation to the signs.
3. The operator has not shown that the individual being pursued is the driver.
4. No contract could be formed due to prohibitive signag.
5. No evidence of landholder authority.

1. The Notice to Keeper (NtK) failed to comply with Paragraph 9(2)(e)(i) of PoFA 2012.

The NtK issued by ParkingEye does not comply with the strict requirements of Schedule 4, Paragraph 9(2)(e)(i) of the Protection of Freedoms Act (PoFA) 2012. This section of PoFA requires the NtK to "invite the keeper" to pay the unpaid parking charge or to provide the details of the driver. Specifically, the notice must contain either the word "invite" or a suitable synonym that makes it clear the keeper is being asked or encouraged to pay the charge.

However, in this instance, the NtK fails to use the word "invite" or any synonym of that term. Instead, the wording may suggest that the keeper is being "informed" or "notified" of the charge. This is a crucial distinction, as the Act expressly mandates the use of language that conveys an invitation for the keeper to pay. Merely notifying the keeper is insufficient, as it does not fulfil the legal obligation imposed by Paragraph 9(2)(e)(i).

The lack of an "invitation" in the NtK is a clear breach of the statutory requirements under PoFA. It is not enough for ParkingEye to claim partial or substantial compliance with PoFA, as full compliance with each and every requirement of Schedule 4 is mandatory for the transfer of liability from the driver to the keeper. The courts have consistently held that if any single requirement is not met, keeper liability cannot apply.

Given that ParkingEye has failed to comply with Paragraph 9(2)(e)(i), the registered keeper cannot be held liable for this charge.

2. The signage was insufficient and unclear, and there is no evidence of the vehicle's location in relation to the signs.

Under the Protection of Freedoms Act (PoFA) 2012, Schedule 4, Paragraph 2(2), "adequate notice" of the parking charge must be given to drivers. In this case, no adequate notice was provided, as there were no visible signs displaying the parking terms and conditions at the entrance to the car park, at the location where the vehicle was parked, or along the route to the entrance of the KFC. The lack of signage at key locations means that the driver was not informed of the parking terms, and therefore could not have agreed to them. Without this essential information, no contract could be formed.

PoFA, Paragraph 2(3) further clarifies that "adequate notice" means the signage must clearly specify the parking charge and be positioned in such a way that the charge is brought to the attention of drivers. In this case, ParkingEye did not display sufficient signage to meet this requirement. The signage, if present, was not clearly visible to the driver at any point during their time in the car park, including the journey from the parking space to the KFC entrance. As a result, the parking charge was not communicated in a clear and transparent manner, as required by law.

Additionally, PoFA, Paragraph 9(2)(c) requires that the Notice to Keeper describes how the parking charge arose and how the requirement to pay was brought to the attention of the driver. Given that ParkingEye has failed to provide adequate notice as defined in Paragraphs 2(2) and 2(3), the Notice to Keeper does not comply with this requirement. The NtK fails to explain how the driver could have been made aware of the parking terms when there was a lack of clear signage. Partial or even substantial compliance with PoFA is not sufficient; full compliance with all PoFA requirements is mandatory in order to establish keeper liability.

For these reasons, I expect ParkingEye to provide a detailed layout of the car park showing the location of all signage, including proof of the exact location where the vehicle was parked and how this relates to any signage. They must also provide evidence that the signage used to display the parking terms and conditions is fully compliant with the British Parking Association (BPA) Code of Practice. ParkingEye will be put to strict proof of the vehicle’s exact parking location and the relationship of that location to any signs passed between the parking space and the KFC entrance.

3. The operator has not shown that the individual being pursued is the driver.

ParkingEye has failed to provide any evidence that the person they are pursuing is the driver of the vehicle on the date of the alleged contravention. As the registered keeper, I am under no obligation to identify the driver, and I decline to do so. Since the operator has not established the identity of the driver, they are relying on the provisions of the Protection of Freedoms Act (PoFA) 2012 to transfer liability from the driver to the registered keeper.

However, as outlined in Points 1 and 2 of this appeal, the Notice to Keeper (NtK) issued by ParkingEye does not comply with the mandatory requirements of Paragraphs 9(2)(e)(i), 2(2), 2(3) and 9(2)(c) of PoFA. Specifically, it fails to "invite the keeper" to pay the unpaid parking charge and has failed to provide "adequate notice" as required by the Act. Without full compliance with all of the requirements of Schedule 4 of PoFA, ParkingEye cannot invoke keeper liability.

Since ParkingEye has not fully complied with the strict conditions laid out in PoFA to hold the keeper liable, ParkingEye are put to strict proof that the person they are pursuing is the driver. Unless ParkingEye can provide unequivocal evidence that I was the driver at the time, or demonstrate full compliance with PoFA (which they have not), they cannot lawfully hold me liable for this charge.

4. No contract could be formed due to prohibitive signage.

The signage at the car park does not constitute an offer of terms for parking but is instead prohibitive in nature. The sign specifically states that there is a 2 hour maximum stay between 10:00 am and 11:00 pm. The vehicle was parked between 09:12 am and 10:08 am, which falls outside the allowed hours stated on the sign. Consequently, the sign is communicating a prohibition on parking before 10:00 am, meaning that no offer of parking is made before that time.

Under contract law, for a binding contract to be formed, there must be a clear offer and acceptance. A prohibitive sign that forbids parking outside certain hours does not offer any terms for the driver to accept, as it simply informs the driver that parking is not allowed. Since no contract could be formed before 10:00 am, no breach of contract can occur, and no parking charge can be enforced.

This position is further supported by the Consumer Rights Act 2015 (CRA). Section 62 of the CRA requires that contract terms and notices must be fair. The CRA defines unfair terms as those that create a significant imbalance in the parties’ rights and obligations, to the detriment of the consumer. A prohibitive sign, which forbids parking outside certain hours while still imposing a penalty, creates such an imbalance. The driver is effectively being penalised for parking at a time when no contract was offered, which is not only unfair but also unenforceable under the CRA.

Additionally, under Section 68 of the CRA, terms must be transparent. The parking terms were not sufficiently clear or transparent in this case, as the signage failed to properly communicate that the car park could not be used before 10:00 am in a way that a reasonable consumer would understand. The signage gives the impression of restricted access but provides no legitimate offer of parking before 10:00 am. Given that a key term of the contract (the availability of parking) was not clearly communicated, this term fails the transparency test required by the CRA.

As such, ParkingEye cannot enforce any parking charge in this instance because:

(i) No contract was formed prior to 10:00 am.
(ii) The signage is prohibitive and does not offer any terms of parking before 10:00 am.
(iii) The signage and any terms invoked are unfair and lack transparency under the Consumer Rights Act 2015.

5. No evidence of landholder authority.

The operator is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the "relevant land" to the operator. It is not accepted that the operator has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.

There is no evidence that the freeholder authorises this operator to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this operator has standing to enforce such charges in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

The operator is put to strict proof of full compliance with the BPA Code of Practice. As this operator does not have proprietary interest in the “relevant land” then I require that they produce an unredacted copy of the contract with the landowner.

The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only). Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules.

A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply.

Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and, of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum on a sign because template private parking terms and sums have been known not to match the actual landowner agreement). Paragraph 7 of the BPA Code of Practice defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

(a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
(b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
(c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
(d) who has the responsibility for putting up and maintaining signs
(e) the definition of the services provided by each party to the agreement

Conclusion:

For the reasons outlined above, the PCN has been issued incorrectly and I request that POPLA uphold my appeal and cancel the parking charge.

Do you have any better quality images of the contract they've provided? The small print is illegible in your uploads.

I can upload the original word doc if there is a way to do that?

• The contract is dated 23 March 2021. The 'Initial Term' is for 36 months, beginning on the 'Service Commencement Date' - the contract doesn't state when this is. Assuming it is 36 months from the date the contract is signed (a reasonable assumption in lieu of any evidence to the contrary), the contract they have provided expired on 22 March 2024, before the parking event in question. They have therefore not demonstrated that they had a valid contract in force on the date the parking event took place
• They have provided a poor quality copy of the document - so poor in fact that it is impossible to read some of the terms
• Whole sections are redacted - some of the redacted sections, including the Termination clause, for example, might contain details relevant to the case.